Killing Miss Muggins: Officially Induced Error

There's been some discussion about whether Labour can rely on ignorance or confusion about the pledge cards, if it transpires that their spending was unlawful. See: > KiwiBlog: "New Court defences" > NoRightTurn: "Analogous defences" In terms of criminal offences: 1. It's clear that ignorance of the law is no excuse. Section 21 of the Crimes Act provides:

s25.Ignorance of law— The fact that an offender is ignorant of the law is not an excuse for any offence committed by him.

2. However, some common law courts have developed the defence of "officially induced error". In New Zealand there is the possibility that this development may be preserved by s20 of the Crimes Act, although I recall a recent case from Baragwanth J suggesting some difficulties in the NZ context. The commentary in Brooker's, Criminal Law describes the defence as follows:

CA25.05 Officially induced error In some jurisdictions Courts have accepted that there might be a defence if a defendant acted on erroneous advice on the law from an official responsible for administering the law in question, for example, People v Ferguson 134 Cal App 41 (1933); R v MacDougall (1983) 142 DLR (3d) 216 (SCC); R v Cancoil Thermal Corp and Parkinson (1986) 27 CCC (3d) 295 (Ont CA). The existence of such a defence was left open in R v Forster (1992) 70 CCC (3d) 59 (SCC). In R v Jorgensen (1995) 129 DLR (4th) 510; 102 CCC (3d) 97 (SCC), Lamer CJC favoured recognising the principle as providing a ground on which the trial Judge may order a stay of proceedings: compare CA24.33. Such a defence has yet to find favour in England. See, for example, Surrey County Council v Battersby [1965] 2 QB 124; Cambridgeshire and Isle of Ely County Council v Rust [1972] 2 QB 426; Ashworth, “Excusable mistake of law” [1974] Crim LR 652. In New Zealand, statute occasionally creates a defence of this kind in particular contexts. See, for example, Cardin Laurant Ltd v Commerce Commission [1990] 3 NZLR 563; (1989) 3 TCLR 470. A general defence has been upheld in at least one District Court case: Dept of Internal Affairs v Nicholls 20/5/86, Judge Bradford, CR5004024002025; W Brookbanks, “Recent developments in the doctrine of mistake of law” (1987) 11 Crim LJ 195, p 200. The possibility of such a defence was not adverted to in Labour Dept v Green [1973] 1 NZLR 412, and in Tipple v Police [1994] 2 NZLR 362, Holland J preferred to deal with such a case by discretionary discharge without conviction (under what is now s 106 Sentencing Act 2002) rather than by recognising a defence. For a comprehensive review of the subject, see M Briggs, “Officially induced error of law” (1995) 16 NZULR 403.

This may provide an avenue for raising these issues (although as I understand the appropriations aspect of the pledge card raises criminal law issues). 3. The conceptual basis for this defence is strong and grounded in the Rule of Law, particularly where the law itself is undertain or ambiguous (which in itself violates the Rule of Law). I won't bore people with the references on this point now. 4. Regardless, the courts treat genuine ignorance of the law or confusion about the law more sympathetically because it goes to the degree of an offender's culpability or "wickedness". As noted in the commentary, in some cases, the mistake or lack of knowledge of an offence may lead to a discharge without conviction. As you'd expect the position on civil proceedings is usually more accomodating of such errors. I haven't got the resources to review it yet, suffice to say that in administrative law and judicial review, it would be one of the key considerations for the High Court when deciding whether to grant any relief even if illegality was established, that is, confusion and ignorance may legitimately form the basis for a court refusing to require the paying back of money. See my earlier posts for more commentary on this point: > LAWS179: "Shifting Goalposts" > LAWS179: "Retrospective (or retroactive) legislation and pledge cards" UPDATE (13/9/2005): Some people have asked what the elements of the defence might be and who bears the onus of proof. 1. The elements for officially induced error are pretty self-evident. The Supreme Court of Canada described it in R v Jorgenson [1995] 4 SCR 55 in the following terms:

In order for an accused to rely on an officially induced error of law as anexcuse, he must show, after establishing he made an error of law (or of mixed law and fact), that he considered his legal position, consulted anappropriate official, obtained reasonable advice and relied on that advicein his actions. When considering the legal consequences of his actions, itis insufficient for an accused who wishes to benefit from this excuse to simply have assumed that his conduct was permissible. The advice camefrom an appropriate official if that official was one whom a reasonable individual in the position of the accused would normally considerresponsible for advice about the particular law in question. If an appropriate official is consulted, the advice obtained will generally be presumed to be reasonable unless it appears on its face to be utterly unreasonable. The advice relied on by the accused must also have been erroneous, but this fact does not need to be demonstrated by the accused. Reliance on the official advice can be shown by proving that the advice was obtained before the actions in question were commenced and by showing that the questions posed to the official were specifically tailored to the accused's situation.

2. The position of the onus of proof is a little more complex. It depends on whether the criminal proceedings are bought as indictable or summary offences: - If bought indictably, the orthodox burden of proof applies, that is, the defendant need only make the defence a live issue by pointing to evidence in support of it; the prosecution then bears the onus to prove beyond reasonable doubt that the defence is not made out. - If bought as a summary proceeding, section 67(8) of the Summary Proceedings Act applies and the defendant bears the onus of establishing the defence on the balance of probabilities.